A bill to clarify the definition of rape—and close what some saw as a loophole—passed a Utah House Committee yesterday, but not before sparking some disturbing conversations about what constitutes rape.

UPDATE, February 5, 12:30 p.m.: The Salt Lake Tribunehas reported that Rep. Greene apologized on Wednesday “for any pain that his words caused.”

Responding to backlash after his comments on what constitutes rape during a recent committee hearing made headlines, the lawmaker told the newspaper, “I understand that, in isolation, some of the words I chose could be interpreted in an ugly way. It was never my intention. I am supportive of the bill and have been from the beginning, and I voted for it.” He added, “I just wanted the committee to be sure what we were doing.”

A bill to clarify the definition of rape—and close what some saw as a loophole—passed a Utah House Committee Tuesday, but not before sparking some disturbing conversations about what constitutes rape.

The bill, sponsored by Rep. Angela Romero (D-Salt Lake City), seeks to amend current law to clarify the definition of rape. Romero wants to remove the phrase “without the consent of the victim” in the provisions related to victims who are unconscious and unaware.

This would remove the burden on the prosecution to show that the victim did not consent. She also wants to change a provision so that if a defendant knows that the victim is “incapable of understanding or resisting the offense” in the moment, it no longer matters if that person also knows that the “victim has a mental disease or defect.”

Romero described these changes as beneficial to both the prosecution and the defense.

“The changes will give defendants better notices and opportunities to prepare their defense, and delete things that are impossible for prosecutors to prove and are confusing to judges and juries,” Romero told the committee. “Another reason why this is needed is to prevent those who are vulnerable from being sexually assaulted by clarifying conditions under which a sexual act is committed without consent of the victim.”

In the debate that followed, however, one congressman expressed concerns over the changes regarding unconscious people. Rep. Brian Greene (R-Pleasant Grove) told the committee, “I’m not trying at all to justify sexual activity with an unconscious person. It’s abhorrent to me, but do we as a body a legislative body, want to make that rape in every instance?”

It looks to me now like sex with an unconscious person is by definition rape. I hope this wouldn’t happen, but this opens the door to it — an individual has sex with their wife while she is unconscious, or the other way around if that is possible, but uh a prosecutor could then charge that spouse with rape.

Others at the hearing disagreed with Greene and voiced support for the clarifications. Donna Kelly of the Utah Prosecution Council told the story of a 2008 case in which a woman woke up in the middle of a rape, but because the judge felt the prosecution could not adequately “prove an expression of lack of consent through words or conduct,” the case was dismissed.

“How can you express anything when you’re unconscious? It needs to change,” Kelly said.

The committee—including Greene—voted unanimously to pass the bill. It now goes to the full house. A senate version of the bill is being sponsored Sen. Todd Weiler (R-Woods Cross).

People are still having sex well into their golden years. According to public health data compiled by Bloomberg News, 67 percent of men between the ages of 65 and 74, and 39.5 percent of women in the same age group, have had partner sex within the last 12 months. But at institutions and in organizations that ostensibly cater to seniors’ needs, the matter of older adults’ sexuality is often ignored altogether.

“It’s not like the gift shops in these long-term care facilities are providing condoms,” Melanie Davis, co-president and a founding member of Widener University’s Sexuality and Aging Consortium, told RH Reality Check. The Consortium, which was formed in 2010, works with nursing home administrators around the country on educating their staff about addressing behavioral issues or day-to-day questions about privacy and sex. Though condoms are occasionally distributed at sex education classes at these facilities, Davis says, few even have policies addressing sexual expression, residents’ privacy, or sexual safety and consent, let alone ready accessibility to STI-prevention methods.

Robin Dessel, sexual rights educator at the Hebrew Home in Riverdale, New York, said the lack of resources for sexually active seniors is reflective of narrow public attitudes. “Society at large has not come to terms with older adult sexuality,” she said. The Hebrew Home was the first adult care facility in the country to draft a policy regarding residents’ sexual expression; it’s also created a set of guidelines to help care providers determine whether a person with dementia can consent to sex.

The consequences of failing to address senior sexuality are complicated: While sexually transmitted infection rates among seniors actually haven’t increased dramatically, seniors may not be getting adequate details about prevention or treatment. In addition, one in three seniors dies due to Alzheimer’s or another form of dementia, and the rate of Alzheimer’s diagnosis is projected to climb over the next few decades. Memory loss can change a patient’s sexual expression and complicate matters of consent. And, as Dessel argues, the rights to privacy, sexual expression, and intimate contact are fundamental human rights—ones that seniors can be losing out on due to a lack of good information and clear policies.

More Than STI Prevention

Much recent media coverage of older adults’ sexuality has been pegged to reports that some sexually transmitted infections are up among people older than 65—leading to suggestions from commentators and reporters that aging Baby Boomers are less likely to practice safer sex or to communicate with partners about their sexual history.

The data on seniors’ STIs come from the Centers for Disease Control and Prevention, but CDC officials interpret the data differently. A spokesperson for the agency told RH Reality Check in an emailed statement that the CDC has not performed an analysis of sexually transmitted infection rates among adults older than 65 as a whole, and that the agency does not believe the uptick in chlamydia reports actually represents an increase in cases. For example, comparing 2008 to 2012, the rate of reported chlamydia among those older than 65 increased from 2.1 to 2.7 cases per 100,000 people—a tiny increase that could be attributed to population growth. For other STIs, such as gonorrhea, the rate of change among seniors is in keeping with that among other age groups.

While STI increases may not be as dramatic as sometimes reported, both Davis and the Sexuality and Aging Consortium co-president, Robin Goldberg-Glen, who is also an associate professor in the Widener University Center for Social Work Education, say seniors still often have a hard time accessing good information about how to protect themselves. Sex education classes in care facilities are far from common, for one thing; for another, there are no condoms designed specifically with older adults in mind.

“Physiologically, erections aren’t as firm when people get older,” Davis, who also runs a private practice as a sex educator, said. “They’re less firm, so it’s harder to get a condom to sit right. What are you supposed to do? Take it off, put it back on—it’s often easier just not to use it.” In facilities that do make condoms available during sex ed classes, she adds, seniors may feel shy about mentioning their difficulties using condoms.

Davis often recommends the female condom, FC2, to older clients. But it takes some time and education to learn to use FC2 properly, especially for older women who haven’t used tampons before.

In addition to these and other physiological concerns—such as erectile dysfunction, lubrication or lack thereof, chronic pain, or changes in mobility—caregivers must address issues of privacy, consent, and appropriate sexual expression that can affect older adults uniquely.

Many facilities are “sex-positive on the face of it,” Davis said; one facility that engaged her as a consultant, for instance, told her they have a private room clients can use for conjugal visits. In reality, however, she says available amenities are often lacking. One facility’s “private room,” for example, was actually a conference room, which staff used for meetings.

Federal guidelines don’t require nursing facilities to allow residents a private room. According to Bloomberg, a handful of states give married couples the right to private visits. And only Colorado’s regulatory language explicitly grants residents and their non-married partners the right to consensual sexual visits. In the 2012 textbook Sexuality and Long-Term Care, Kansas State University Center on Aging Director Gayle Doll suggests care facility staff can support a patient’s right to sexual privacy in several ways—such as helping residents rent a hotel room, moving twin beds together, permitting use of a double bed, or hanging do-not-disturb signs when a resident’s sexual partner visits. The Hebrew Home’s policy, for example, requires the facility to ensure residents’ privacy and, when possible, to make arrangements for sexual expression, such as allowing a private room for one member of a couple.

Consent Is Key

The issue of sexuality becomes even more complicated, advocates say, when memory loss or other forms of dementia come into play. Before Dessel developed the Hebrew Home’s sexual expression policy, she worked in memory care at the facility. There, she found a crying need to address sexuality in an appropriate way.

Many forms of dementia will cause patients to make inappropriate comments or act out sexually, Dessel says. She points out that staff need to be trained to address those behaviors appropriately.

Oftentimes, Dessel says, facilities take a “parochial attitude,” as she put it, toward residents’ sexual expression. Goldberg-Glen, too, said in a joint interview with Davis that it’s not uncommon for families or facilities to deny—or offer and then remove—residents’ access to private spaces and visits without fully assessing whether a resident can consent to sex.

“It’s very challenging because it’s not formulaic,” Dessel said of determining whether a person with dementia is able to consent to sex. The Hebrew Home’s guideline sheet for consent among memory patients suggests asking questions like, “What are your wishes for this relationship?” and “Do you enjoy sexual contact?” It also suggests caregivers check residents’ body language while asking these questions. Dessel adds that caregivers should communicate frequently with residents to observe whether their feelings or capacity are changing.

According to Dessel, it’s usually best to involve a “collective of clinicians and family” and to check in with the resident frequently.

The issues of consent and memory have recently resurfaced among advocates, caregivers, and media outlets with last week’s Bloomberg report on the case of Henry V. Rayhons, a Republican Iowa legislator and retired farmer who will be tried in January on charges that he raped his wife, who had Alzheimer’s disease and was in a care facility. The charges refer to an alleged sexual encounter in the shared room of Rayhons’ wife, Donna Lou Young. Young’s roommate made the complaint; Young has since died. Rayhons told investigators he couldn’t remember if he had sex with Young on the day in question, and forensic evidence is so far unclear. Rayhons has said that he had many sexual encounters with Young after the onset of her dementia.

The Hebrew Home’s director, Daniel Reingold, is quoted in the story as saying, “This was not a rape,” contending that Rayhons and his wife had a loving relationship. Dessel, when contacted by RH Reality Check for a comment on the Rayhons case, wrote in an email, “This is a tale with a sad and demoralizing last chapter … where is the humanity when vilifying a gentleman for sharing cherished and final intimate relations with his wife? A fatal error occurs when we presume guilt based on the notion that Alzheimer’s has stolen not just mind but heart.”

She continued, “Consent is a fluid state of awareness in the context of all decision-making, whether in the presence or absence of Alzheimer’s. I am hopeful that the takeaway is one of enlightened understanding and regard for older adults with Alzheimer’s and, in spite of this fate, that we give credibility and honor to their life choices.”

Young’s facility, Concord Care, did not have a policy regarding sexual matters specifically, but after her family raised concerns about visits with Rayhons, a provider gave her a 15-question mental capacity test—the Brief Interview for Mental Status (BIMS), often used to diagnose dementia—to decide whether she could continue to consent to sex.

The assessment is pretty basic: It asks clients to repeat back common words to the tester, like “sock.” A score of 15 on the test indicates high mental capacity, and zero is the lowest score possible. Young scored a zero on the test the second time it was offered, ten days before the assault is said to have occurred. After the second assessment, Concord Care staff moved Young to a room with a roommate and told Rayhons his wife was no longer able to consent to sex. According to Bloomberg, Rayhons said that he understood.

For her part, Doll writes in Sexuality and Long-Term Care that facilities can use several means of determining whether adults with dementia can consent to sexual activity. One path involves using a different cognitive assessment—the Mini-Mental Status Exam—as a first step. On that test, the highest score is 30, and people with Alzheimer’s usually score a 26 or less. Doll’s text describes a “decision tree” where a person with a score 14 or higher on the test goes through further assessment. Someone with a lower score would automatically be deemed unable to consent.

Based on her BIMS score, it’s likely Young would automatically have been disqualified from progressing in the decision tree. But a study published earlier this year does note that although BIMS works well for determining the presence of dementia, it does not consistently assess the severity of impairment.

Doll goes on to say that clinicians and facilities may prefer to use “functional competency” rather than a cut-and-dried test—a model that recognizes that people with dementia may be incapable of making some decisions for themselves and capable of making others.

“No matter how an organization chooses to go about determining consent, there are a few basic things to remember,” the book says. “The capacity to decide to have an intimate relationship should not be based on a one-size-fits-all concept. While some people affected by dementia will not be capable of handling their finances, they might have very clear ideas of what they want in a relationship. Cognitive memory may be affected while emotional memory is not. Feelings remain long after the ‘facts’ have disappeared.”

Doll also notes that literature from the field of developmental disabilities care has addressed consent in ways that could apply to senior care since at least the 1990s. In their various works on the subject, Dr. Thomas-Robert Ames, the now-deceased former president of the Coalition on Sexuality and Disability, and Perry Samowitz, senior director of education and training at the YAI Network, recommend examining relationships based on safety, voluntariness, lack of exploitation and abuse, ability to say no, and ability to choose a socially appropriate time and place for sex.

Beyond Long-Term Care

The fact that Young’s facility, Concord Care, lacked a clear policy on residents’ sexual rights is not unusual. Dessel said she’s regularly contacted by nursing care facilitators all over the country either to consult on specific clients’ cases, or to help them develop a sexual expression policy.

Other than pioneers in the field like Dessel, there are very few resources when it comes to improving attitudes toward sexual education and expression in long-term facilities. Sexuality in Long-Term Care is one of the few textbooks that addresses sex among older adults. Older, Wiser, Sexually Smarter—written for staff at senior centers or long-term care facilities—is another.

In a broader sense, the majority of older adults do not live in facilities—in fact, just 4.1 percent of Americans older than 65 do. So far, few sex ed curricula exist for older adults, and media covering older adults’ lives are often vague on the issues that affect their sexuality, says Davis. With that in mind, she led a team of sex educators and therapists in the creation of a website, Safer Sex for Seniors, intended as a clearinghouse for people looking for information about older adult sexuality.

The site is also there for young adults who may find themselves having to have a variation of “the talk” with their aging parents, and it includes information for grandparents who are caring for their grandchildren and aren’t sure how to talk to them about sex. In conjunction with the site, the advertising agency DDB NY created a PSA campaign urging seniors to practice safe sex.

Davis is also working to develop a sexuality curriculum not geared to adults living in facilities, which will be published by the Unitarian Universalist Association and the United Church of Christ. Separate from that effort, the Consortium offers continuing education to agencies on aging, family care providers, geriatricians, and sex educators about the best ways to address education for their older clientele.

Independent of the Consortium, other provider organizations are beginning to talk to their members about older adult sexuality as well. Joan Baird, director of pharmacy process and product development for the American Society of Consultant Pharmacists, says that her organization has started holding continuing education sessions for pharmacists on older adult sexuality, because pharmacists play a special role in working with patients on a regular basis.

“More and more clinicians are realizing [seniors’ sexuality] has to be part of the conversation about safer sex,” Baird said.

Davis says her interest in sexuality and aging stems from the fact that she herself is aging, and she has led workshops on, as she said, “age-related sexual privilege—this idea that sexuality, sexual expression is in the realm of younger people.”

“People automatically assume you’re talking about intercourse,” Davis said. In mainstream discussions, she said, “there’s nothing about sexual identity, gender, orientation.” Plus, she pointed out, “There’s intimacy that may or may not be physical. If all you think about of sex is having an erection, once that goes away, you’re done. While the sexual activity may change, your essence may not change.”

UPDATE: This article has been updated to clarify that the advertising agency DDB NY created the “Safe Sex for Seniors” campaign in conjunction with Safer Sex For Seniors.

Central to the political agenda of men’s rights activists is floating the idea that men somehow have a "right" to an abortion, or more accurately a right to interfere with a woman's right to an abortion—an argument that highlights the intersecting bigotries embedded in the men's rights movement.

Marcus Lee is a third-year sociology major at Morehouse College and one of RH Reality Check’s youth voices.

Some of the most dangerous anti-woman work is done at the hands of so-called men’s rights activists (MRAs). Initially organizing themselves in the ’70s as a response to what they claimed was the rise of “misandry,” MRAs push for a more patriarchal society—one that’s organized by “natural” gender roles and supposedly gender-blind but actually male-dominated state governance. For example, A Voice for Men, an online men’s rights organization founded in 2009, has as the first goal of its mission statement the exposure of “misandry and gender-centrism on all levels in our culture.” Here, the group immediately associates gendered analyses of society with the hatred of men, hence promoting disregard for and ignorance of the suppression of women.

Central to the political agenda of MRAs is floating the idea that men somehow have a “right” to an abortion, or more accurately a right to interfere with a woman’s right to an abortion. MRAs argue that women’s autonomy is directly oppressive to men because men are disallowed input as to whether or not women should give birth. Thus, they argue that the state should intervene by forcing women to consult men before they can legally abort a pregnancy or that women or doctors should be held legally accountable to men after an abortion has taken place, usurping their right to self-determine.

Unfortunately, this hazardous ideology has been taken seriously and supported by a few lawmakers. For example, in 2009 Ohio state Rep. John Adams (R-Sidney) sponsored HB 252, which would have assigned men direct control over women’s bodies by requiring doctors to receive written consent from the father of the fetus before a woman could have an abortion. Similarly, under an anti-racist, anti-sexist guise, Rep. Trent Franks (R-AZ) sponsored HR 447 in this current session of Congress to “prohibit discrimination against the unborn on the basis of sex or race, and for other purposes.” Here, Franks attempts, ironically, to imagine a reputable justification for control over women’s bodies by questioning their motivations for an abortion and by situating himself, doctors, and men in general as social justice deputies.

Given that these efforts are seeping into multiple state and federal legislatures, the rhetoric and strategies employed by MRAs must be taken seriously. They are deeply problematic and counterproductive to women’s liberation and gender equity. However, they also pose problems to racial equity and sexual freedom. Through a specific examination of MRAs pushing for their own set of “abortion rights,” it is possible to highlight the intersecting bigotries embedded in the men’s rights movement.

Acknowledging how oppressions rely on one another helps to deconstruct them. Looking through this intersectional lens reveals that the argument for an alleged men’s right to an abortion relies on racist conceptions of bodies as property, and heterosexist, traditionalist ideas about female eroticism. It is important to note that the men’s rights push for abortion rights is representative, not exemplary—that is, “men’s abortion rights” initiatives should be understood simply as puzzle pieces within the larger, problematic universe of the men’s rights movement.

First and foremost, men’s “right to an abortion” is predicated on the idea that children—and fetuses—are pieces of property jointly owned by men and women; their arguments insinuate that if children are property, then it follows that it is unfair for a woman to have complete control over whether or not a potential piece of property over which she shares ownership with a man materializes. This conception of children is evident in MRA-influenced legislation. For example, Franks’ HR 447, the “Prenatal Nondiscrimination Act” (PRENDA), would authorize civil actions for verifiable money damages for injuries and punitive damages by fathers and maternal grandmothers. In this way of thinking, children, unborn fetuses, and women’s uteruses become properties that can be assigned a dollar amount by men who moreover exert ownership. Because the fetus and the uterus are inextricable, women are necessarily implicated by the conception of children and the fetus as property.

Additionally, conceiving of children as property is a direct strike against the fight for racial equity as it comes out of an anti-Black ethos. The abolition of slavery should have been accompanied by the total deracination of each constituent part of its ethos. In other words, if we think of slavery as a poisonous cake, we shouldn’t have just thrown out the cake; we should have thrown out each ingredient that led to the creation of the cake with the understanding that each intentionally added to the poison. Any time any of these ingredients are used in another recipe, the end product is dangerous. One of the main ingredients of slavery is the idea of people as property—Black bodies were things to be bought and sold among people who believed that they had ownership over them. In order to avoid reproducing any facet of the catastrophe that was slavery, the idea that people are property must be wholly eradicated for any and everybody.

Meanwhile, MRAs reproduce the ideology of slavery with their conception of children as property; consequently, working to reproduce an environment that is conducive to Black marginality and suffering. Thus, MRAs push for the right to an abortion is a significant obstruction to the struggle for gender and racial equity.

Furthermore, men’s “right” to an abortion is predicated on an assumed traditional, male-centered sexuality where sex is defined by vaginal penetration, consent is simplified to yes or no, and women are subjected to expectations of compulsory availability and heterosexuality. Under this view, MRAs suggest that men are powerless with regard to impregnating women, and therefore need state intervention in order to remedy power imbalances.

In reality, understandings of sexuality should be complicated through a queer paradigm in order to make for an environment that is conducive to greater sexual freedom for women and men. Vaginal penetration is not the only form of sexuality to be performed.

Consent cannot be simplified to a yes or no—it is an ongoing negotiation of sexual practices, likes and dislikes, and desires and distastes. Sex may include the desire or the lack thereof to have a child, and the necessary precautions should be taken to make both parties comfortable with the encounter and its potential outcomes, including but not limited to condoms, spermicide, and non-penetrative sex. When consent is simplified to a yes or no, the vulnerability and comfort level of the passive partner during the encounter are disregarded.

Lastly, women cannot and should not be understood through a lens of compulsory availability and heterosexuality—women are indeed diverse people with different sexual desires, different life goals, and different attractions. They cannot be reduced to targets of male (hetero)sexual desire. When they are, queer people are unfairly placed on the periphery and non-queer people are the targets of uncomfortable encounters.

As they are used by MRAs in arguing for men’s “right” to abortion and beyond, these assumptions together absolve men of all responsibility from necessary negotiation regarding sexual practices. This not only works to disenfranchise women, but also obstructs sexual freedom for women and men.

Finally, the logic of MRAs simply fails. They seem to employ a biological deterministic logic, arguing that if both men and women contribute to the biology of the fetus, then both should help determine what will happen to it. However, suddenly this biological deterministic logic is abandoned when examining female biology: Using the same lens, if the choice to have or not to have a child significantly affects the biology of a woman, then she should be able to make that decision for herself. MRAs conveniently adopt biological determinism, and then disregard it when it no longer works for them, consequently undermining their own argument.

In the end, the logic behind sexism always falls apart.

MRAs depend on sexism, racism, and heterosexism to work toward men’s “right” to abortion and beyond. Relying on ideas of human bodies as property and female sexuality as necessarily traditional, heterosexual, and available, they create a severely dangerous logic aimed toward men exerting even greater control over women’s bodies. If this analysis isn’t convincing enough, one would need to only look toward the blog posts on the A Voice for Men website—one of which romanticizes racial terror by arguing that “misogynist” is the “new n-word.” Highlighting these intersections is important, because doing so heightens the potential for intra-community coalition building within social justice movements.

A situation in June in which a woman sent unsolicited penis pictures she had received to the sender’s mother, and an ongoing debate in Britain about what, if any, depictions of sex should be banned have raised interesting questions about the limits of privacy and consent.

In June, a story of “girl power”-style revenge made the rounds on social media. Reportedly, a woman sent unsolicited penis pictures she had received to the sender’s mother, despite his protestations. Meanwhile, an ongoing debate in Britain about what—if any—depictions of sex should be banned has resurrected the age-old question: Does pornography cause rape?

Both stories raise interesting questions about the limits of privacy and consent.

Most of us agree that when adults voluntarily share generic photos of themselves with friends who consent to viewing them, this is no matter for censorship or state intervention. There is, however, less agreement on how much autonomy we should have when those images involve nudity or are explicitly sexual. Some jurisdictions ban “hard-core” or “extreme” pornography, while others place limits on the “obscene.”

Part of the problem is that we do not have a homogenous view of what constitutes pornography or obscenity in the first place. The difficulty in stating clearly what we believe is immoral or wrong was memorably captured by U.S. Supreme Court Justice Potter Stewart in 1964, when he stated that constitutional protections of free speech clearly did not protect “hard-core pornography,” a concept he couldn’t define, though he was certain he would “know it when I see it.”

It was also recently highlighted by a successful grassroots campaign to push Facebook to implement better guidelines on what content the social networking site should take down. The campaigners argued Facebook wrongly identified breastfeeding mothers as “obscene,” while leaving up photos and speech they felt advocated violence against women. Facebook argued it routinely removed hate speech, while leaving up humorous, though offensive, content.

And the difficulty is at the core of the current debate in Britain about a 2008 act that prohibits the possession of “extreme pornography,” defined to include images produced for the purposes of sexual arousal of acts that, if real, would likely cause serious injury to a person’s anus, breasts, or genitals.

Last summer, this act was put to the test in a case against a London mayoral aide who was charged with possessing images of a sado-masochistic nature. The images depicted friends and acquaintances of the aide, who, the prosecution does not contest, had consented to the pictures being taken and shared. The aide was ultimately acquitted after a very public trial, but lost his job. Those who advocate for maintaining and expanding the prohibition of “extreme pornography” argue that such images, in themselves, are a form of assault, and that they cause more violence by trivializing abuse.

It is important to note that a causal link between pornography and violence has not been proven. A 1991 study of criminal data in four European countries concluded that incidences of rape had not increased more than nonsexual violent crimes as pornography had become more easily available. This was confirmed in a 2009 study, which concluded that evidence for a causal relationship between exposure to pornography and sexual aggression is slim and may have been exaggerated.

So the real question is whether pornography (or sexual imagery) in and of itself constitutes assault. And this depends on consent and affects privacy. Rape apologies aside, there is no longer confusion (at least in the law) that anyone forced to carry out a sexual act, on or off camera, is a victim of assault. In other words, pornography constitutes assault when it depicts individuals who have not consented to have sex, let alone to having it filmed.

Pornographic images also constitute a form of assault when they are thrust on people who have not consented to seeing them. This is the case with unsolicited penis pictures, and is the reason those forwarding such pictures to the sender’s family and friends (or the public in general) argue that thrusting them on others is par for the course.

To be sure, claiming privacy rights over penis pictures you have imposed on someone who did not want to see them is like suing for libel when publicized security camera footage shows you robbing a bank. Then again, there is something slightly off about forwarding photos you did not want to see on others who likewise have not consented to viewing them. In such cases, a more ethical (though much less immediately satisfying) course of action would be filing a complaint for aggravated harassment.

But not all pornographic images are wrong. Photos that have been taken and shared with the full consent of everyone involved, including the recipients, should not be banned, but rather benefit from privacy and free speech protections—because such images are not assault, but sex. And surely we would be hard-pressed to think of anything more private than that.

]]>http://rhrealitycheck.org/article/2013/07/24/when-do-depictions-of-sex-constitute-assault/feed/0Get Real! His Religious Beliefs Say No Condoms, But I Need Them. What Do I Do?http://rhrealitycheck.org/article/2013/05/31/get-real-his-religious-beliefs-say-no-condoms-but-i-need-them-what-do-i-do/?utm_source=rss&utm_medium=rss&utm_campaign=get-real-his-religious-beliefs-say-no-condoms-but-i-need-them-what-do-i-do
http://rhrealitycheck.org/article/2013/05/31/get-real-his-religious-beliefs-say-no-condoms-but-i-need-them-what-do-i-do/#commentsFri, 31 May 2013 22:18:30 +0000http://rhrealitycheck.org/?p=19824

What to do when someone's religious beliefs or ideas conflict with your need and want for safer sex and pregnancy prevention.

The guy I’m sleeping with really wants to have PIV sex with me, but he won’t wear a condom because he’s Roman Catholic. Everything else we’ve done has been amazing and I really want to do it, but I’m terrified of getting pregnant and I’ve already had a scare that I haven’t told him about. I’m on the pill now, but I know that it isn’t 100% effective. Would it be really wrong to try and get him to change his mind about condoms? I’m religious too and I’d hate to make him do anything that would go against his faith, but the idea of getting pregnant scares me so much that I have nightmares about it, and since we’re not really together I don’t know what he’d do.

So, your limit, a limit you need to make clear to him, is that you won’t engage in sex without the things that reduce the risks you aren’t comfortable with: that includes condoms.

You can say something like, “I respect your beliefs, wants, and limits here, but this is what I need in order to feel OK engaging in that kind of sex, just like you’re saying going without condoms is what you need. I know your limit, and now you know mine. Now let’s talk about where we both want to go from here.”

Then he gets to decide what he wants to do, and what is or isn’t in alignment with his own limits.

It may be that he feels it’s more important to him to have sex without condoms or other risk-reduction than it is to have sex with you—whether or not that’s based on his faith. I say that because Roman Catholicism doesn’t support sex (of any kind, not just intercourse) outside of marriage, sex for purposes besides procreation, or engaging in sex when someone is using the pill, so it’s hard for me to tell how much this all really is or isn’t about religious doctrine, since he’s being awfully inconsistent here.

Regardless, if he decides he’d rather hold his line about sex with no condoms than compromise with that so he can have sex with you, that’s OK (and it’s OK no matter what his desire to not use condoms is based in). He gets to feel that way, and he gets to decide to only have sex with people who don’t want to use condoms or other forms of contraception and risk reduction.

Or, it may be that he decides that his desire to have sex with you takes bigger precedence over his belief that it’s not within the bounds of his religion to engage in sex using condoms, and he may decide he’d rather use condoms than not have sex with you. He gets to do that too, if that’s how he feels and what he finds he feels best about.

(I’d also say that you should figure that someone who insists on not using condoms with a partner probably poses higher sexually transmitted infection (STI) risks. Because if they have had any other partners before, they probably did not use condoms with them. So, with someone like this, I’d say just from an STI-safety standpoint alone, going without condoms for any oral, vaginal, or anal sex is probably a bad idea. Personally, in a situation like this, I’d just be graciously saying it was time for me and someone like this not to continue to be sexual, since what I needed for emotional and physical safety obviously isn’t compatible with what they believe in and want to do. No harm, no foul, everyone is still awesome, but I’m going to just exempt myself from the whole situation and move along.)

No matter what he decides, you can both set your own lines and not make anyone do anything they’re not uncomfortable with when you’re just clear that, like they have given lines, so have you, and you want and intend to respect both of them. In other words, he’s set his, now you’re going to set yours. And so long as you both respect what the other decides, and neither of you attempts to change the other’s mind about each of your limits, it’s all good here.

So if you’re going to hold your limit with condoms, but you also understand and respect he may continue to hold his, what’s most likely is that you’ll be at an impasse. What that probably means is that sex between the two of you isn’t going to be something either one of you will choose to move forward with. Here, it sounds like what he wants and what you want just really aren’t a fit; it sounds like you two just aren’t a good choice for being partners together.

If that’s what winds up happening, that gets to be OK too. In fact, when any two (or more) people find that to engage in sex together, one of them would have to do something they really don’t want to do, or take risks they don’t want to take that scare the beejeezus out of them, and that don’t need to even be taken? Not having sex together is usually the best choice for everyone involved.

After all, it’s not like you’re the only two people in the world. He can find partners who also don’t want to use condoms, and you can find partners who also want to use them.

The world goes on when that happens. It truly keeps right on turning, even if we’re bummed out about not having a sexual relationship with someone we wanted to have one with.

Being disappointed like that sucks, but it passes, and it also usually feels a whole lot better than doing things with sex we don’t want to do and really aren’t OK with. You probably know this already just from being in the position where you don’t feel like you can tell him you had a pregnancy scare, and that’s something you had to go through alone. With a partner that was a better fit for you? You wouldn’t have had to do that—you could have been honest and gotten some emotional support you probably really wanted.

Not only does the world keep right on turning when we choose not to have sex with a partner who isn’t compatible for us in some ways, our sexual lives and the way we feel about them are usually far better for it when we are only choosing sexual partners who are truly a good fit for us. They’re usually much, much better when we don’t do sexual things, or do them in ways we really don’t want to, without the safeties we need to stay well and to feel safe and sound. When we only do them with partners where we’re both able to have sex involve the things we really want and need—where those wants and needs are at peace, not in combat.

I don’t think the fact that his belief around this is apparently religious really changes anything, nor makes this any different than if his desire not to use condoms had nothing to do with religion.

Again, it might not really have anything to do with religion, given how it sounds like he wants to do and does do things that are just as far outside that doctrine in terms of sex anyway. Even if it did, it’s not like because something is about religion, it gets to automatically trump or be held higher than someone’s boundaries or personal safety needs. Plus, I have to tell you, I’m not convinced this isn’t just someone trying to wheedle their way out of using condoms with you by using religion as an excuse, especially given the inconsistencies with his beliefs and behaviors. It’s not like he’d be the first person to do that.

But ultimately, he wants a thing that doesn’t work for you; you want a thing that sounds like it won’t work for him. So you both just put those things out there, as limits, hopefully each with care and respect for each other, and make your decisions about them accordingly, understanding that no one has to do anything they don’t want to do here, or aren’t comfortable with. And the simplest, and probably soundest, way to make sure that’s not what happens? It’s probably just to nix sex together altogether, and maybe even just both move away from this sexual relationship, so you both can seek out different partners who fit you both a whole lot better.

Here are a few links that I think will give you some extra help with some of this:

When allegations first surfaced that several Stuebenville High School football players had been involved in the rape of a young woman from a neighboring town, Steubenville High School volunteer football coach Nate Hubbard suggested the victim was making the whole story up to avoid punishment for getting drunk and missing curfew. On the eve of the trial of two of the football players charged in the attack, that’s essentially the same argument the lawyer for one of the young men is making.

In some ways, arguing the victim consented is the only defense available. Attorney Walter Madison, who represents one of the young men charged in the rape, laid out his defense strategy to the Cleveland Plain Dealer. Madison argued that there is an “abundance” of evidence showing the victim voluntarily drank a lot of alcohol and willingly drove off in a car with a group of boys, including the two football players charged. That evidence, Madison claims, points to consent to whatever happened next. “There’s an abundance of evidence here that she was making decisions, cognitive choices,” Madison told the Plain Dealer. “She didn’t affirmatively say no,” Madison continued, taking a swipe at the victim, who is reportedly not testifying at the trial. “The person who is the accuser here is silent just as she was that night, and that’s because there was consent.”

She didn’t affirmatively say no, therefore, the defense implies, she must have said yes. And if she didn’t consent, they suggest, then why isn’t she testifying?

It’s a routine strategy employed by criminal defense attorneys in defending clients against rape charges: undermine the prosecution’s case by discrediting the accuser. Cast enough doubt on the accuser, shame her sufficiently for engaging in the sex act to begin with, and the issue of consent becomes muddied, even if the case involves a girl being carried around by her wrists and ankles by a self-proclaimed “rape crew.”

Had Madison’s statements been made in the courtroom, at some point prosecutors or the judge would presumably remind Madison of the obvious, legal truth: Under the law, a victim doesn’t have to resist or say the word “no” for a rape to occur. And presumably prosecutors or the judge would also remind Madison that, under the law, a person under the influence of drugs or alcohol, voluntarily or involuntarily, is not at fault for being sexually assaulted. What does matter, as far as the law is concerned, is whether her ability to consent was “substantially impaired” and whether the young men knew it.

This issue of “substantial impairment” is what Madison was arguing before the press, and what he will be arguing in trial. Normally attorneys preview arguments to the press to help sway public opinion and press their opposition toward resolution. But here? The two young men charged are being tried in juvenile court, which means no jurors to educate or sway. Instead, attorneys will make their case to Judge Tom Lipps, a juvenile court veteran with decades of experience dealing with teenagers and who took the case over after a prior judge with ties to the community and the football program was recused.

Madison will make that argument in the face of a mountain of evidence, taken mostly from social media from the time of the attack, that shows the victim passed out and at times in various stages of undress. Madison will make that argument, despite the fact that witnesses to the crime, who have not yet been charged, told police that while the victim wasn’t “passed out,” she also “wasn’t there to say yes or no,” slipping in and out of consciousness, at times completely unresponsive when the boys touched and probed her. And Madison will make this argument in the face of a now-infamous 12-minute window, which several other teenage boys talk about her being raped.

Which brings us back to the question: Why preview the defense arguments to the press? Blatant victim-blaming is a risky strategy in any rape case, let alone one that has drawn national attention and protests in support of the victim. Here, it looks to be the only defense Madison has got.

And that, right there, is the problem. Victim-blaming and shaming remain the principal defense against a rape claim in both a court of law and the court of public opinion. Madison’s arguments to the press may do little to change the outcome of the legal case pending before his clients, but they went a long way toward guaranteeing that another tragic crime like the one in Steubenville will happen again.

I am 25. I am a virgin. I went on this date with this guy. We were trying to have sex. He didn’t put his penis inside of me. I was in pain. I panicked. I told him , I am not ready. I don’t know him very well. I did not want to sleep with him. I was freaked out. He told me, you are 25. You should be ready. My friend told me to purchase a vibrator that will help me be more comfortable with sex. Do you think I need more foreplay? Is there something wrong with me? Is there a way I can make the experience better for me?

Heather Corinna replies:

I don’t think there’s anything wrong with you. But, boy howdy, does it sound like plenty was wrong with this situation.

You were also clear that you didn’t feel ready to have sex with this person once it was obvious to you that you felt that way.

The right response to that from him should’ve been something like, “Oh, okay, let’s stop any of this, then. Do you still want to hang out some more tonight, or would you like me to go and give you some space? Are you okay? Is there anything I can get for you or do for you if you’re not?”

NOT, “You are 25, you should be ready.”UGH.

If anything, that response makes clear THAT guy probably isn’t ready to be sexual with other people, because that’s just not how we respond to another person in this situation when we’re actually respecting and regarding them as a person. It’s not like people come with some kind of timer that goes DING! at or by a certain age and then they’re done when it comes to being ready for — or interested in — sex with any given person at any given time. You’re a person, not a roast in the oven, for crying out loud.

I suspect that what will make any sexual experiences better for you are what tend to make them good for pretty much everyone.

For one, they need to be truly wanted. When we don’t want to engage in any kind of sex, or we did, but then we don’t anymore, it’s never going to be any good for anyone. You can be sure that if this guy had stopped wanting sex with you, he’d probably have stopped and opted out of continuing with it, too.

We do also need to feel ready, on our own terms, not just if and when someone else wants us to be ready, or thinks we should be, because they want sex from us.

What feeling or being ready means to you may not be the same thing as what it means to other people, but certainly, feeling like you don’t know someone well enough to be having sex with them is one of those things where no one is going to feel ready. While everyone may not have the same timetable with that, or the same timetable with one potential partner versus another, we’re all going to have some measure of when we feel comfortable enough with someone — or don’t — to be sexual with them.

Another one that’s pretty universal when it comes to what makes sexual experiences good, or comfortable for people is not sleeping with people who are being total jerks. I don’t really know who is ready to be sexual with people who don’t treat them like human beings in the most basic ways, but if and when we are ready for that, we probably have some big issues to work out, issues we’re not likely helped by trying to work out through sex with people who don’t treat us with basic care and kindness.

Clearly, this guy wouldn’t qualify. This guy, from the sounds of things, wasn’t treating you with basic respect and care. It sounds pretty clearly like what he was invested in was having sex, not in the person he wanted to have sex with. To be healthy, sound sexual partners for anyone, we’ve got to be invested in, and mindful about, both.

You asked if you needed more foreplay or, what I just call other kinds of sex. (After all, things like making out, oral sex or manual sex, when we’re all engaging in them to explore and express our sexual feelings or desires, are kinds of sex just like intercourse is a kind of sex.) For sure, before intercourse, many, if not most, people who are receptive partners will tend to want or even need other kinds of sex first before intercourse feels good, or to get more aroused. While I don’t think that would have made this situation much better, because any kind of sex with someone saying what this guy said to you sounds like it’d be a drag, on the whole, that certainly tends to work much better for most people than rushing into sex with any kind of entry. Too, what tends to work best for most people, especially people brand new to any kind of sex with a partner, is gradually exploring sexual activities together, over time, and spending a lot of time with kinds of sex other than intercourse first. As in, not minutes or hours, but weeks or months. Not all on the day of a first date, but as you more gradually get to know someone.

I want to make sure that you know that there’s no one age where everyone is “ready” to have sex with someone else. Not 25, not 18, not 70. We’re all much too different for that, and the range of situations and partnerships where we can or do engage in sex are all way too different for that. And, even if we’re ready, for example, to have sex, of any kind, with one person we’re with when we’re 19, that doesn’t mean that we’re going to be ready to have sex with someone different, or even that same person, when we’re 30.

Readiness for sex with someone isn’t a one-time thing, something where once we’re ready once, we’re ever-ready. Readiness for sex with someone is situational, and something we establish every single time we do or might engage in sex with another person, and where we won’t always have the same feelings or answer. It’s also not just based on us: it’s also about the other person, who they are, how we feel about them and with them, what we do or don’t want with them at a given time, a whole big and unique picture, every single time we might engage in any kind of sex.

Think about it like this: we’re born ready to eat, right? Of course, we’re not ready for solid foods until a given time, because we need teeth for that. But even once we are, that still doesn’t mean that we all want or like the same kinds of foods, that the same kinds of foods all sit the same with all of us, nor that we’re all always hungry just because we’re “ready” to eat. Sex with someone — and even just with ourselves, alone — is a lot like that. The process of puberty (which often lasts into the 20s), makes our bodies “ready” for sex in the most rudimentary ways. But just like having teeth to eat solid foods doesn’t mean we’re always hungry, or always want a given food at a given time, having gone through puberty doesn’t make us always ready for sex.

Sometimes “ready” as a framework can also trip us up if we forget that just being “ready,” in a general way, doesn’t mean that every sexual situation or partner will be right for us. Being ready in a general way, doesn’t mean we want to pursue every possible sexual opportunity, either. Most people, if not all people, have at least some basis of selection, if not a pretty involved, specific basis, when it comes to if they engage in sex with someone else, when, and with whom. I feel very safe saying absolutely none of us is “ready” for sex with absolutely anyone at any time.

Really, it looks to me like you made a good decision here telling this guy to back off and opting out. Good call, you. He just doesn’t sound like someone anyone is likely to have a positive sexual experience with. If you didn’t want to be engaging in sex with him, if you didn’t feel ready, feeling freaked out makes sense. After all, we will tend to feel that way when any situation in life is wrong for us. I don’t see any reason to second-guess your feelings and reactions here: they seem like they were dead-on to me.

I’d suggest that in thinking about sexual interactions in the future, you take some time to try and identify what you want and to first explore and consider your sexuality yourself. You can’t know all of that for sure, in the abstract, obviously, but you really can figure out quite a lot all by yourself, just by consulting your heart, your head, and some sex and sexuality information.

Masturbation certainly can be part of that process, and most often is for most people before they ever engage in sex with a partner, but how you choose to explore that is up to you. If you want to experiment with a vibrator, by all means, do, but that certainly isn’t required if that doesn’t appeal to you. A vibrator also isn’t some magical tool that can make someone feel ready for sex with anyone else at any time. It’s just a tool you can use to explore pleasure on your own or, later on, if and when you find a partner, with a partner. Masturbation can also help you figure out what you do and don’t like on your own, give you a place to explore sexual feelings and fantasies, and give you a place to become more comfortable with your own body and sexuality, but no matter how we do it, all by itself it’s not going to make us comfortable with every possible sexual situation. That’s okay, since there’s no one for whom every possible sexual situation is a right one for them.

But our sexuality, and whatever sexual activities we choose to engage in, isn’t just about the physical. Nor is it just about what we do or don’t find pleasurable, or about feeling more comfortable engaging in sex. It’s a much bigger picture than that.

I think it might also be helpful to also have a big think about what you want and need in a possible sexual partner. Not what they want from you, but what you’re looking for, want and need from and with them.

For instance, with this guy, you clearly felt you didn’t know him well enough. How long do you feel like you need to get to know someone first, per what feels like it’d be best for you? What does an ideal getting-to-know-them scenario look like in your mind? What might the two of you do in time you spend together? What things would you like to first talk about and know about them? Does it mean meeting some of their friends first? Family? Them meeting yours?

How about talking about the fact that you aren’t very sexually experienced? Why not find out through talking to someone how they might approach that before becoming sexual, and make it a criteria to only consider moving forward into any kind of sex with someone who isn’t a total tool about it, or better still, who sounds like, in those conversations, they’ll work with that fantastically, with the kind of pace that you feel best about, and whatever sensitivity you want and need?

Might any kind of sex that feels right for you, that isn’t scary, and doesn’t make you feel panicked, involve some kind of commitment? Some people, or some people sometimes, are comfortable with sex outside an ongoing or committed relationship. Other people, or other people sometimes, aren’t. Think about you and what you know about who you are: what sounds like what you’re most comfortable with now and in the near future?

These aren’t all of the issues and questions to think about, but based on what you’ve posted here, I think they might be good starting points.

I’m going to give you a few links to click and read through which I think will help you more to consider what you do and don’t want right now, and feel ready for, in the most general way, but which can also help you evaluate specific potentially sexual situations or partners to help you figure out what’s right for you.

I think if you take some time to do that — and no matter what this guy said, or your friend says — there really is no rush, you get however much time you want and need before being sexual with someone else, at any age — and try and lead with what you think and feel is right for you, with what seems most in alignment with what you want and need, you’ll more easily avoid hellacious sexual situations like this one, and be more likely to find and co-create sexual experiences, interactions or relationships that are positive and that do feel good, physically and emotionally.

The piece about consent I’ve included can give you an idea of how partners should be addressing you when it comes to communicating about sex and consent (hint: sop not like this guy did). The last link on that list is to give you some helps it sounds like you might need in slowing things down with a potential partner who wants to speed up much faster than your pace.

The Tennessee Supreme Court has an opportunity to reject a dangerous legal interpretation that holds statutory rape victims can be considered accomplices in the crime committed against them. But will it?

It’s hard to imagine a more devastatingly unjust view of child sex crimes than one that considers the victim as an accomplice in the crime committed against them. But in Tennessee that’s the very issue before the state supreme court in a case that has drawn attention to a centuries old rule that strikes some troubling contemporary notes on rape, consent and force.

In State v. Collier, a 42 year-old man was convicted of aggravated statutory rape after having sex with a 14-year-old victim. Collier, who authorities say was an old friend of the teenager’s father, allegedly picked the victim up from a friend’s house, took her back to his home where he had sex with her. When the girl returned home the next day she told police she had called Collier from her friend’s house and that he picked her up and that she had consented to sex with him. Based on her statement Collier was arrested and charged with aggravated statutory rape.

During his trial, Collier denied he had sex with the girl, but was nonetheless convicted. On appeal Collier argued there wasn’t enough other evidence to support his conviction because the victim, by telling authorities she consented to sex with Collier, was in fact an accomplice to the crime. Under Tennessee law, Collier argued, prosecutors need more than her testimony to support a conviction and absent that additional evidence his conviction should be overturned.

Believe it or not, under Tennessee common law, it is possible for a minor sex crime victim to also be an accomplice in the crime. The issue turns on whether that victim voluntarily consented to the sexual activity. If your head is swimming after that last sentence, you are not alone. The very idea of statutory rape is that some kinds of sexual encounters are legally impossible to consent to per se—such as the one between a forty-two-year-old man and a fourteen-year-old girl. Yet in Tennessee a string of cases suggest the pernicious idea that minors are culpable in their victimization is not at all a thing of the past.

The rule that a child sex crime victim can also be an accomplice in the crime committed against them first emerged from an 1895 case in which a Tennessee court found no “evidence of force” in a case involving an uncle having sex with his niece. Because there was no evidence of force, the court upheld a decision to convict them both of the crime of incest, embracing the idea that “evidence of force” is the same thing as “evidence of consent” and suggesting that even in the case of minors an absence of such evidence suggests culpability in the crime by the victim.

Then, in 1960, the Supreme Court in Tennessee reversed the conviction of a father who was accused of having sex with his daughter multiple times over two years. In that case the court ruled that despite the fact his daughter gave birth to a child she claimed was the product of that sexual abuse, without the benefit of DNA testing and absent evidence of force or other corroborating evidence, the law considered the victim an accomplice to the statutory rape crime and therefore the state needed more evidence to support the conviction.

These are the same issues, and the same sentiments, under review in the Collier case.

And that is really the point. By classifying sex abuse victims as accomplices in the crimes committed against them, those protecting abusers have succeeded in exploiting a rule that requires prosecutors use more than evidence from co-conspirators in prosecuting those charged with a crime. In almost any context other than statutory rape prosecutions, such an evidentiary prohibition on prosecutors makes sense: after all, the state should be forced to find evidence to support a charge and conviction beyond just the testimony of someone who helped commit the crime. But in the context of laws that criminalize sex between adults and children, the idea that a child’s “admission” to “consent” to an act to which they cannot legally consent is used as the basis for finding them culpable in their own victimization defies all logic, reason, and moral defense.

Some legal observers believe the Tennessee Supreme Court agreed to hear the case in order to do away with this idea once and for all. But when the state Supreme Court in Alabama unilaterally declares a fetus a person by judicial fiat, it is hard to feel optimistic about this kind of case. And that is even more true in a political climate where conservatives freely invoke the rhetoric of “legitimate rape” and “honest rape” and when judges in states like California opine on whether a rape victim’s case is “real” or merely a “criminal law problem” during the sentencing of her perpetrator. We can talk about the Tennessee law as “arcane” but if it is used to support decisions in the modern day, there is nothing arcane about it. Here the State Supreme Court has an opportunity to make an important clarification in the law and end the legal practice of diminishing the victimization of statutory rape survivors. Let’s hope the court takes such an opportunity seriously.

The California Court of Appeals handed down a stunning decision holding that a man who admitted to police that the women he woke up for sex likely mistook him for her boyfriend, is not guilty of rape. This is but one more illustration of just how far the law has yet to go to recognize women’s sexual autonomy.

Here is how the court itself framed the issue:

“A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes”

The defendant, Julio Morales, was among a group of people who attended a party with the victim and her boyfriend. After the party the group returned to the woman’s home, where she fell asleep in her dark bedroom. After her boyfriend left, the defendant entered her bedroom and began having sex with the woman. She said she yelled and tried to push Morales away when she realized he was not her boyfriend. She describes waking up to the sensation of someone having sex with her and as soon as she realized what was happening began screaming, crying, and yelling. But, according to the California court, this was not technically a violation of her ability to consent to sex.

Really.

Prosecutors had argued Morales was guilty under a law barring the rape of an unconscious woman under two alternate theories. One theory was pretty simple: the act was a rape because the woman was asleep and therefore did not consent to sex. The second theory, and the one the court struggled with the most, was that the act was a rape because the woman was unaware of the nature of the act based on a lie or trickery, and that lie being Morales impersonating her boyfriend.

The issue of whether pretending to be someone else for the purposes of having sex with another is an issue that courts have wrangled with for at least a century. The law generally provides for two kinds of fraud: fraud in the inducement and fraud in the fact. The difference between the two can sometimes be difficult to distinguish, but in general pretending to be someone else to get sex is considered fraud in the fact rendering any claims of consent invalid.

But the courts have been inconsistent when characterizing sex crimes involving impersonation and in California law sexual intercourse by impersonation is rape, but only when the victim is married and the perpetrator impersonates the victim’s spouse. For example, in Mathews v. Superior Court a case from 1981, the defendant was charged with attempted fraudulent procurement of a female to have illicit carnal connection, based upon allegations that he sexually fondled and caressed her while she was in the bed she usually shared with her boyfriend. In that case the majority concluded the charges could not be sustained because “one who obtains sexual favors for himself by fraud cannot be held to “procure” sex within the meaning of [the statute.]” Although in Mathews the majority opinion did not address the impersonation issue, in a concurring opinion, Acting Presiding Justice Paras impliedly referred to impersonation as fraud in the inducement. The justice, who wrote that he offered his concurring opinion “to emphasize what I perceive as an obvious and serious oversight in our Penal Code” asserting that the “distinction between married and unmarried victims seems no longer warranted” in “[a] society which has condoned meretricious relationships.”

Just a few years later the court would come to a slightly different conclusion of when “trickery” voids claims of consent in Boro v. Superior Court (1985). While the Boro case did not involve impersonation but rather a misrepresentation that the sexual intercourse was a necessary medical treatment, the court addressed impersonation in its discussion of the meaning of “unconscious of the nature of the act.”

In Boro the court noted the disagreement among the courts as to whether impersonation constitutes fraud in the inducement or fraud in the fact, and stated that California has by statute “adopted the majority view” that impersonation of the victim‟s husband is fraud in the fact. The court in Boro observed that although the facts in Mathews, “demonstrate classic fraud in the factum, a concurring opinion . . . specifically decried the lack of a California statutory prohibition against fraudulently induced consent to sexual relations in circumstances other than those specified in [the statute].” But despite that, the court in Boro also saw itself unable to rule otherwise absent a change in the law from the legislature.

What this confusion in the case law shows is that until California amends its criminal code to reflect impersonating anyone for the sake of procuring sex, women in the state remain at significant risk that their rape will go unpunished. This is the fact the court in this most recent Morales struggled with, and it’s opinion represents a clear signal to the California legislature to update its sex crimes laws. The court gave its holding that Morales was not guilty of rape by impersonation “reluctantly” and ordered the defendant re-tried on the issue of whether the act was a rape because the woman was asleep.

So while there remains the possibility that some justice will be done in this case, it does not change the fact that in the law in California (and elsewhere) still understands a woman’s ability to consent to sex as somewhat relational to who she is having sex with. It’s reassuring to know the court was troubled by the outcome here, it does nothing to change the law. In fact, it does just the opposite and reinforces the idea that women’s sexuality is something to be measured in terms of her relationship to a man. As long as that fact remains women will not be considered fully autonomous under the law and our claims of sexual violation will remain suspect from the start.

]]>http://rhrealitycheck.org/article/2013/01/04/california-court-says-sex-by-impersonation-not-rape-woman-is-not-married-0/feed/1Get Real! I Gave Him My Virginity, But Don’t Feel Like I Got Anything Backhttp://rhrealitycheck.org/article/2011/11/22/i-gave-him-my-virginity-but-i-dont-feel-like-i-got-anything-back/?utm_source=rss&utm_medium=rss&utm_campaign=i-gave-him-my-virginity-but-i-dont-feel-like-i-got-anything-back
http://rhrealitycheck.org/article/2011/11/22/i-gave-him-my-virginity-but-i-dont-feel-like-i-got-anything-back/#commentsTue, 22 Nov 2011 08:27:10 +0000What to do when what's supposed to feel like a sexual milestone feels more like a raw deal, including sorting through feelings of upset about a partner's sexual history.

I’ve been dating my boyfriend for 6 months now. He is my first long-term boyfriend and I really do love him. He is 3 years older than me and has had a 3 year relationship with another girl before me. After 3 months we decided to have sex. I was a virgin and this was a really big deal to me but he was not a virgin and had been with 2 girls before me. I don’t regret being with him, I knew I was ready. But I get really upset about him not losing his virginity to me. Is it normal to be so upset about his past and past relationships? I have tried to just forget it all but I almost feel cheated. I gave my virginity to him and I didn’t get anything in return. I felt like it wasn’t as special to him as it was to me. How can I get over this?

Heather Corinna replies:

Feeling like you didn’t “get anything in return” sounds very troubling to me. That strikes me as a huge deal, and like something that’s probably bigger and about more than sex being a first-time for you and not for him. Someone with partners before you isn’t limited in their ability to do their part to make sex be something where it feels like there is a very mutual benefit because they had other partners.

I want to make sure you know that if you made what you feel is a wrong choice for you in this, that’s okay. Our lives are an ongoing learning process, and we are not always going to make our best choices. Often enough, we won’t know or realize what our poor choices were and what the better ones could have been until we’ve already made them. It’s not the most awesome-feeling part of life, for sure, but it’s human, okay and is a big part of how we grow and keep figuring out what we really want and need. Plus, we really can do most things again in ways better for us when we want to try again. This setup some people create where first-time-ever sex is either perfect or awful, and nothing in between, doesn’t really support that process. I’ll explain more as I go, but I’d suggest you try and let go of that notion if you have it. Every time we have sex can be a first time if we approach it that way, which not only takes a lot of these pressures off, it tends to make for a much better sex life then anyone thinking their firsts are all over, or the most important part of their sex life — a part that’s most typically not the most awesome for anyone — already happened.

If you’re holding on to feelings of being mad at yourself about this choice, try and let that go. Beating up on ourselves rarely gets us to the good stuff. How about you instead focus on taking the valuable things you can from all of this and using them like we tend to use things we learn from a first try: to move forward so that our next try goes a bit more like we’d like it to than the first did?

What first-time sex (whether that’s intercourse or something else) means to any given person varies. What any given sexual experience someone can have can mean a lot of different things to a lot of different people, including first-time experiences. Even if you’d engaged in sex for the very first time with someone else whose very first time it was, too, that doesn’t mean it would have meant the same things to both of you, like that you’d have felt it was as special to the other person as it was to you. It also doesn’t mean you’d have found in it what it was you were looking for.

I don’t know what first-time sex has meant for you before, during or what it now means after-the-fact. Like I said, people differ with this. I also don’t know what you, as an individual, have wanted or want now when it comes to your sexual or romantic partners. For some people, having a sexual partner with their same level of experience, be that general life experience or specifically sexual or romantic experience, is important. For other people, it’s isn’t, isn’t so much, or isn’t in the same ways. And of course, how important some of these things are can change for people through different phases of life, different relationships, or based on what they find out from their life, sexual or romantic experiences.

You get to feel however you feel about this. If what you really wanted was a sexual partner whose first time it also was, you get to have wanted that. You even get to still want that. But that’s not the person you chose to be with for this experience. You know we can’t unring a bell, whether that’s about choosing to engage in sex with this person or this person’s life having involved other sexual and romantic partners before you. How you feel about these things is in the present, but these events are in the past. They’re done. He had partners before you, and you chose to engage in sex with him, knowing that. I can get you might feel bummed about that, but I don’t think it has to be a big bummer, really, especially since that issue alone probably isn’t really what’s at the core of how you’re feeling, anyway.

You feel pretty bad right now, and about some things now in the past, but probably also about a relationship or parts of it that are still going on or might happen in the future. I’m not sure what you think might have been different if this had been his first time, but I think you can certainly start by thinking about that yourself, because I think that’s a good start to figuring out what you want and need now and moving forward.

I have a couple lists you can make and look at which I think will help get to the bottom of some of this — including if this is bigger than his sexual history, which I suspect it is — may help you move forward from here in a sound way and will hopefully also help you make some peace with your feelings.

First: make a list of what you walked into first-time sex expecting and what you wanted from it. Be as real and as honest as you can. Then cross out the things where you feel like those expectations and wants were met: where it was as you expected and you did get what you wanted from it. After that, set that list aside for a bit.

Next: make a list of what didn’t happen with first-time sex you are NOW so strongly wishing it had been like: things that aren’t on the first list, that you’ve only realized or discovered in hindsight. That may include you wishing you had been this person’s first partner, but don’t stop there. Focus on all the things you can think of that you feel were not right or didn’t feel good (including afterward) about that experience, and put them on this list, even if some of those things seem silly or like they shouldn’t matter.

Now: look at both of those lists. Put an X by things that really, truly ONLY could happen or could have happened if you had been his very first partner.

Chances are, there won’t be much to put an X by. For instance, maybe you wanted this person to put more value on the sex you two were having or better recognize how important this was and is to you. His having had partners before you doesn’t prevent that (nor would you being his first partner mean he’d have done those things), so that’d stay. What about wanting something like someone to ask you more how things felt for you during, or maybe have expressed how he felt about you more demonstrably during or after sex? He can still do those things and could have: his having previous partnerships didn’t stand in the way of any of that, either.

Maybe you wanted him to feel just as vulnerable as you did, a vulnerability you think is about it a first time? Even in that case, I don’t think you can cross that one out, because for all you know he didn’t feel any more vulnerable than when it was his first time and wouldn’t have. Maybe you wanted him to act like he didn’t know what he was dong? Again, I don’t think we can cross that off: a lot of people having a first-time don’t act that way, and just because we’ve slept with other people before also doesn’t mean we know what we’re doing with a new partner, even if we think we do or act like we do.

When you’ve X’d the things it truly is sound to cross off as things that absolutely could not have been or can’t be based only on his past, because his past is not something he can change, take a look at what’s left.

Those are the things where you could potentially have experienced or might still experience something different with this person if he or you changed your behavior — during sex or in general — ideas or attitudes. Or where things could have gone more like you wanted and didn’t, but not because or only because he had sex with others before you.

Those are things you both can probably potentially change if you both want to change them, be that with the way you relate, how you approach and go about sex together, how you think about these things, or even by changing your expectations. Plenty of people’s expectations about sex before they engage in it (and plenty after) are not very realistic, so some of this stuff may just be about acknowledging the things we can’t ask sex itself to provide, like increasing a partner’s value of us, for example. Those are the things that are not about his having previous partners.

Next. Do you want to do what you can to resolve these feelings with this person, and/or keep pursuing a sexual and romantic relationship with them? Then after you think about these things for yourself, it’s time to start talking about them together. In these talks, I’d focus not on what he or you can’t change — like his part or your choice to have sex with him — but what you or he can change. If you wanted those things then and feel bad now, you probably also want them now and in the future, right? The things you have on that list you feel you want and need that he can provide or help with, regardless of his sexual history? Tell him you want and need them. Ask him to talk with you about how he feels he or you might be able to make changes so you can have them.

You also want to make sure that you’re taking stock of what things you wanted and want still that he might not be a big part of. For example, how’s your self-esteem? Do YOU feel special all by yourself, without any status from your relationship, including the status you don’t have, but want of being a first sexual partner? Too, with what you know now, were you really ready? Do you feel ready now, or like maybe you need to take a few steps back and rethink this for yourself? Anything you come to realize is about things you need to do or work on for yourself? Hop on ‘em.

If his having previous partners still feels like a big issue for you and you want to stay in a relationship with this person, it might help to think about romantic or sexual relationships as being similar to friendships or family relationships. People often apply very different standards to them in some respect, but that’s often not sound.

In families with more than one child, can a second or third child never be as special as the first? Whoever your best friend is in life right now: are they less special than your best friends from before? Was your very first best friend any less special because you have this other best friend now? Is this boyfriend less special to you because you had boyfriends before? In all of those cases, the answer is probably no.

We don’t have a tiny handful of love or ourselves that we can spend in one place like that and have it be gone ever after or be less than we had in the first place. Value, love and care for other people are kind of like rechargeable batteries. We can use up a lot of juice with one person at one time, sure, but then we can recharge and have just as much to give someone else. That’s part of why we CAN have more than one friend and have them both be special, and parents can have more than one kid and love one of them just as much as another. I’d suggest you try to let go of ideas about this person or you being more or less special and embrace the fact that BOTH of you can be special, just in different ways and at different times. Even if his very first partner was special to him, that doesn’t mean his very first time with you wasn’t, too. This doesn’t have to be a competition: everyone can win.

That all said, if you strongly feel you would feel better being with someone whose life experience and romantic and sexual history is more like yours, then you get to choose that moving forward. Maybe for you, at this point in your life, having this kind of relationship with someone years older than you and with more life experience isn’t what you want or what feels right for you. It’s okay for people to have those kinds of preferences in ways that are still respectful of others, which is mostly about just owning your preference as yours instead of suggesting it should be everyone’s and recognizing it’s about a preference of yours, not about someone like your boyfriend having less intrinsic value as a person because he had other partners before you.

You know, for as long as this work has been my gig, I have heard a vast array of first-time sex stories and feelings about them afterwards. One of the many things I’ve learned in that listening and talking is that there is NO one right way of engaging in first-time sex — sparing serious basics like everyone really wanting to have that kind of sex, full, mutual consent and people feeling ready — that results in people getting the expected results or what they wanted. For instance, I’ve heard people be disappointed or feel hurt in the ways you’re expressing when both people were both having a first-time. I’ve heard from people able to marry who waited until marriage and were disappointed. I’ve heard from people who didn’t wait and were disappointed. People experience disappointment and regret with first-time sex in every context you can think of, just like other people don’t in every context you can think of.

Disappointment with first-time sexual experiences is tremendously common. Having seen so many people aim to do what their (or someone else’s) idea of the “right way” was who still found it didn’t give them what they were after, my sense is that’s usually less about the context being wrong and more about people’s expectations being problematic. So many people who feel disappointed with first-times seem to often have had the idea that a first time is about things being perfect or one-time-only. I don’t know about you, but for me, that’s an awful lot to ask of a first time for anything.

First-time sex, just like first-time bike riding, first-time public speaking or first-time writing isn’t about getting everything exactly right or about any sort of end. It’s about beginnings, about a start to what will likely be a lifelong process of learning and growing and experiencing things. The first time we try and walk? We usually fall flat on our face or our bum. Our steps are unsteady. Our knees wobble like jello. Then we try again. And again. And we get better and better at it over time, rather than magically being expert at it and feeling expert at it that first time, or framing that first time as an ideal for how to walk. Over time we learn things that help us get better at it, like what we need to be stable in our steps, how we can move from walking to running or jumping, and how to feel more confident in walking. We learn how to walk whatever our own best way is, based on the uniqueness of our bodies and selves. We don’t — and can’t — know any of those things with our very first step. That first step is where we just start learning, not where we stop. The same is true here.

Your first time wasn’t what you wanted it to be. I know how important that can be to people, so I’m so sorry that you feel that way. But one of the very best things about what really makes a first time so cool and potentially important, even when it’s not ideal (and sometimes more because it isn’t!), is that it’s about opening a door to many, many opportunities afterward for next times, many of which will, just by virtue of not being first times, usually go way better. Now you’ve learned a few things, maybe gotten some clues about things you want and need you might not have known or acknowledged before. You had a first time. Going into it, you expected certain things, you wanted certain things, and you felt you did or didn’t need certain things. So, going into a possible next time, and a time after that, and after that, what do you know now? What can you use from what you know now to make choices moving forward, to ask of partners moving forward, and be much more likely to get what you want and need?

Some of what you learned here might mostly be for or about yourself, like maybe part of being ready for you when it comes to sex is being with someone and in a time of your own life or a relationship where you already feel very special and very valued in the greater context of their lives and your own, separate from them. Maybe some of what you learned, and this partner can too — after all, it was his first time with YOU, so he’s at the start of a learning process just like you are — is that there are some things you need for sex to feel good for you neither of you knew you did, like perhaps some more affirmation and loving communication during sex or more affection afterward, like things to make it feel more special for both of you, like having it be more clearly recognized by your partner that sex with a partner is a very big deal to you.

I don’t know anything about this relationship. I know you love this person, but that doesn’t tell me anything about the dynamics or quality of the relationship. So, I also want to make sure you’re thinking about that. Sometimes sex with someone illuminates parts of our relationship: it can do that with the great stuff but also with the stuff that isn’t great. It may be some of the bad feelings you’re having are because the failings with the sex you had are also failings in your relationship as a whole. I want to make sure you don’t have the idea that you have to stay with this person if things really aren’t good, if this relationship isn’t what you really want, or if what went wrong here for you with this sex is what’s been or is becoming wrong for you in the relationship, like not feeling special to this person or like you get as good as you give.

I know sometimes people can feel that if they “gave their virginity” to someone and they don’t stay with that person evermore, they will have really messed up. But since it’s rare for people to stay a lifetime with a first partner, and staying in a relationship that’s not what you want and need and isn’t good for you is bad news for everyone, I disagree. Again, we’re talking about first-times, not last times.

If you feel lousy about sex you had with someone, like feeling that you didn’t get anything close to what they did out of it the first time, chances are good that — unless something changes about that person, how they interact with you and vice-versa, and the way you’re having sex together — it’s probably going to feel that way the next time. And the time after that unless, again, whatever created those feelings can change and does change. So, in working all of this through, be sure you also do some thinking about this relationship as a whole and if it’s right for you. If the things you want and need are things you can both work on and improve, but this guy doesn’t seem to care about them or really want to work on them, the big issue here may not be this guy’s past, but this guy just not being a good fit for you in the present. Same goes for figuring out if, with what you know now, a sexual relationship with this person is right for you. If you feel like it’s not, or you’re really unsure now, you can always take sex off the table. Just because we had any kind of sex with someone once never means we have to keep having sex with them.

This is a heavy stuff, I know, and it can be hard to try and sort it all through when you’re feeling blue. You don’t have to figure all of this out at once: you can’t, anyway. Before you even get started, you may need to take some extra care of yourself, like doing things you know make you feel better when you’re feeling down. Take whatever time you need with this, have as many talks as you need to with this person, friends or family. I don’t think you did anything wrong here in any big way. But I think you can use how you’re feeling and what you know now to inform your choices moving forward so that you’re more likely to have sexual experiences and romantic relationships you feel great about, rather than conflicted with. And that’s going to involve more than loving someone or not, but taking some larger stock of what you really want and need for yourself and in sex with someone else beyond feeling love.

Whatever conclusions you come to, just be and stay real about whatever it is you really want and need right now, using this past experience not as something that makes your present miserable, but as a way to get better at seeking out, asking for and agreeing only to what you feel will make sex or sexual relationships in your present and future be more likely to be as right for you as they can be.

I’m going to leave you with some links I think might help, and you’re also always welcome to come to the message boards if you’d like to talk more about this either one-on-one, or with other users who’ve been where you’re at: